ALP Senator Joseph Ludwig (Queensland), speaking on the Telecommunications (Interception and access) Amendment Bill 2007 , said the key purpose of schedule 1 in the bill was to transfer security and law enforcement provisions from parts 13, 14 and 15 of the Telecommunications Act to the TIA Act. Schedule 1, item 12 also inserted a new chapter 4, which deals with access to telecommunications data. The amendments established a regime for particular officers of ASIO or an enforcement agency to lawfully authorise the disclosure of telecommunications data without breaching the general prohibitions on the disclosure of that data that exist within existing sections 276, 277 and 278 of the Telecommunications Act.

All-knowing ASIO gets access: “The new chapter 4 transfers sections 282 and 283 of the Telecommunications Act to the TIA Act. The basis for lawful access will depend on whether the authorising body is ASIO, a criminal law enforcement agency or an enforcement agency.” Ludwig said. “The new provisions distinguish between access to historical telecommunications data—that is, data which is already in existence at the time of the request—and prospective data— that is, data that is collected as it is created and forwarded to the agency in near real time. Access to prospective telecommunications data is only available to ASIO or criminal law enforcement agencies because of the high privacy applications of this type of access”.

Narrower access to “future” communications: “The key amendments are contained in Part I. Those amendments create a new two-tier access regime. The first tier encompasses the traditional access to existing telecommunications data. These agencies are defined as enforcement agencies. The second tier, which would be limited to a narrower range of agencies—that is, the criminal law enforcement agencies— would require a higher threshold of authorisation, allowing for future access to telecommunications data, and that is covered in proposed sections 176 and 180”.

Brave new world needs historical, prospective data distinction: “The need to distinguish between historical and prospective data is a reflection of the advances in technology which enable the use of telecommunications data to provide, amongst other things, location information”.

Reference: Joseph Ludwig, Senator for Queensland, Manager of Opposition Business in the Senate, Australian Labor Party, Senate Hansard, Commonwealth of Australia, 20 September 2007.